Court Watch #9: Highly Sensitive Documents

Welcome to the ninth issue of Court Watch. Our New Year’s edition. 2022 was a banner year for federal court records. First, Congress got darn close to making court records free but ultimately came up short. Second, the Justice Department continued its largest single event prosecution in its history with over 930 individuals charged with crimes related to January 6th which added thousands of new records into the system. It also represented one of the largest discovery efforts between prosecutors and defense attorneys. 250,000 tips and 13,000 hours of bodycam video (in theory) have to be shared. According to court employees and others close to the judicial process interviewed by Court Watch, this unprecedented number of defendants put the D.C. federal court near its breaking point on handling the deluge of filings and hearings. (editor's note: we interviewed three people just to have one throwaway line in an online newsletter).

Speaking of January 6th, let’s talk about a memo issued exactly one year later by the Judicial Conference of the United States. In short, it’s believed that a foreign government or two hacked the American justice system. The hack, no doubt, matters, but for advocates of the public’s right to access federal court records, the response to the hack matters a great deal more.  The chief judges in most districts issued local rules implementing a designation of ‘highly sensitive documents’ or HSDs. These HSDs are filed with the court under seal, but never uploaded into PACER. They typically are filed on an air-gapped computer to prevent them from being hacked in the future. The problem? HSD designations are all over the map. In some districts, an Assistant U.S. Attorney can decide what is a sensitive document and file it as such (with the judge's approval). In others, only certain documents can get that designation. But, in nearly all of them (if not, all of them), there is no system to trigger the courts to review whether to ever unseal the documents and as such, they languish in a forever sealed land. 

Assistant U.S  Attorneys move on, they take fancy jobs at fancier law firms, they retire, they do all the things normal lawyers do. And if, by chance, and usually by standard, they do not file to unseal HSD documents that have expired their need to be highly sensitive documents, the documents will never see the light of day. Even moreso, the public can’t petition to unseal the documents because – and we can’t believe we’re writing this in an open democracy – they don’t know the documents exist.

In the vast majority of districts, there is no notice in the system that a HSD has been filed. You can’t file a motion to unseal something you don’t know is there. As such, highly sensitive documents are a perfect black hole for public access. In the districts where they do note that a HSD has been filed, one doesn’t know enough information to form a coherent unsealing motion to pitch a judge. Additionally, just to add insult to injury, the courts charge individuals 10 cents to download a one page document on the docket that literally just says HSD in big black letters. 

Court Watch asked the only man in the world who reads more federal court records than us, Mike Lissner, the Executive Director of the Free Law Project, his thoughts on all of this. “The aging and insecure PACER system must be urgently replaced. The fact that it's not secure enough for some documents means it's not secure enough for any documents. Since being hacked by three adversaries last year, the judiciary has created a backroom process that denies the public our rightful access to this information,” Lissner continued. “While these extreme measures were necessary due to the creaking nature of PACER, this should not become the norm, and risks a slippery slope where more and more documents are withheld from the public.”

Highly sensitive document designations are a gaping hole in the public’s right to know. Chief Judges don’t seem to care that they’ve issued essentially forever sealing orders. The Judicial Conference of the United States, which issued its initial memo saying hackers were inside the henhouse, has not issued recommended uniform standards for designating highly sensitive documents. Congress can’t pass a bill that saves 14 million dollars, let alone one that tells its co-equal branch of government to create a system to deal with highly sensitive documents. 

The status quo is untenable and the HSD loophole of public access continues unabated. 

We’ve been told ‘sunlight is the best disinfectant.’ We hope Court Watch moved the clouds out of the way to let the sweet sweet yellow rays of transparency shine down. But now, onto some more lighthearted things. 

Last issue we promised a year end roundup of the best snippets from the courts. Between the candy cane daze and the bitter cold, we couldn’t get our stuff together enough to do a true roundup. We’ll endeavor to do so in the very near future. That all said we need to feed the newsletter beast ever so slightly with at least one example. We are objectively biased, but Court Watch’s favorite personal court record of 2022 comes from a potential juror in a January 6th case of Thomas Robertson, a ex-police officer who was sentenced to seven years for his crimes on that day. If you’ll indulge us for a bit of, well, self-indulgence, but it speaks to the reach of independent reporting.

As is standard when interviewing potential jurors for a trial, an individual was asked if he knew anything about the case he would be deciding. The result was a phenomenal back and forth about Twitter, Shameless News, and accents:

Using the power of social media, Court Watch was able to track down Juror 254. He was gracious in his comments but would prefer to remain anonymous. For the record, his accent was southern and “had honestly forgotten about it.” But, of course, we didn’t. Thanks for defending our honor and spelling our name right, Juror 254. 

Our 2023 resolution is to get the Court Watch newsletter itself referenced in the dockets. A concerning number of assistant U.S. attorneys and federal defenders subscribed to Court Watch in the last week which will be especially helpful if we ever consult with a known or suspected pirate. Consider this an open invitation to sneak us into a court motion footnote while we all brush up on our sea marauder maritime law. 

With the holiday break, it was a relatively quiet week in the federal system. A few of the ones we found most interesting:

• There goes Rameses’ pension: Two individuals allegedly scammed University of North Carolina Chapel Hill out of $660,000 dollars by convincing a school employee that the bank wire information for one of their contractors had changed. 

• Double Trouble: The Winklevoss twins are being sued in a lawsuit which alleges that their company, Gemini, should have warned customers about the risks of investing and registered with the Security and Exchange Commission.

• Boy, that escalated quickly: A man who ordered two burgers and salad to go and ended up with a lifetime ban from the restaurant for complaining about the time it took to, in his words, “cook a salad” is suing a Maryland taproom owner. The suit includes a police officer bodycam, facebook posts, heavy metal music, and everything in between.

• You’re gonna need a bigger boat: 5,626 pounds of weed were removed from a ‘go-fast vessel’ off the coast of Colombia. The Coast Guard ended up firing disabling shots from a helicopter, boarding the craft, and arresting nine individuals who were then charged in the Eastern District of Virginia. 

Thanks for reading and we hope your new year’s resolution lasts as long as a sealing order for search warrants in the Northern District of California (hence, forever).